Christopher Cooper et al.

Patent Trials and Appeals Board

Feb 27, 2020

14700910 - (D) (P.T.A.B. Feb. 27, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/700,910 04/30/2015 Christopher COOPER KEYTRAK.053002 2522
100183 7590 02/27/2020
Adolph Locklar
Michael Locklar
4615 S.W. Freeway
Suite 630
Houston, TX 77027
EXAMINER
MORTELL, JOHN F
ART UNIT PAPER NUMBER
2689
NOTIFICATION DATE DELIVERY MODE
02/27/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docket@adolphlocklar.com
docket@al-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHRISTOPHER COOPER, CARLAN COOPER, and
ROBERT T. BROCKMAN
____________

Appeal 2018-005115
Application 14/700,910
Technology Center 2600
____________

Before CATHERINE SHIANG, JOHN P. PINKERTON, and
NORMAN H. BEAMER, Administrative Patent Judges.

SHIANG, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 4–20, and 22–28, which are all the claims pending and
rejected in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.

1 We use “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies Key Control Holding, Inc., as the real party in interest.
Appeal Br. 5.

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STATEMENT OF THE CASE
Introduction
The present invention relates to “vehicle management systems.”
Spec. ¶ 2.2
An embodiment includes a lot management system. The lot
management system includes a transmitter comprising a
location determination module having a GPS data pathway to
an RF transmission module and a receiver including an RF
antenna and a receiver processor.

Spec. ¶ 4. Claim 1 is exemplary:
1. A vehicle management system comprising:

a vehicle information module, the vehicle information module
including a location determination module having a GPS data pathway to an
RF transmission module, the vehicle information module having a vehicle
information data pathway to an RF transmission module, the vehicle
information module including a diagnostic connector including a power pin
connector configured in accordance with OBD-II standards and configured
to plug into an OBD-II port of a vehicle, wherein the vehicle information
module is adapted to communicate with at least one computer system of the
vehicle to gather at least one vehicle parameter; and

a receiver comprising an RF antenna and a receiver processor.

References and Rejections

Claims
Rejected
35 U.S.C. § References
1, 4–18, 20, 103 Kim (US 2010/0060485 A1; Mar. 11, 2010),

2 Throughout this opinion, we refer to the (1) Final Office Action dated May
31, 2017 (“Final Act.”); (2) Appeal Brief dated October 25, 2017 (“Appeal
Br.”); (3) Examiner’s Answer dated March 8, 2018 (“Ans.”); and (4) Reply
Brief dated April 17, 2018 (“Reply Br.”).
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22, 23, 25, 26 Mosher (US 2014/0067231 A1; Mar. 6, 2014)
19, 24 103 Kim, Mosher, Kuo (US 2008/0165030 Al; July 10,
2008)
27 103 Kim, Mosher, Ousborne (US 5,499,182; Mar. 12,
1996)
28 103 Kim, Mosher, Kirkhart (US 6,052,646; Apr. 18,
2000)

ANALYSIS
Obviousness
Claim 1, 4–19, and 27
We disagree with Appellant’s arguments. To the extent consistent
with our analysis below, we adopt the Examiner’s findings and conclusions
in (i) the Final Action from which this appeal is taken and (ii) the Answer.3
On this record, the Examiner did not err in rejecting claim 1.
Appellant contends:

The combination of Kim and Mosher does not teach “a vehicle
information module, the vehicle information module including a
location determination module having a GPS data pathway to an RF
transmission module, the vehicle information module having a vehicle
information data pathway to an RF transmission module. . .wherein
the vehicle information module is adapted to communicate with at
least one computer system of the vehicle to gather at least one vehicle
parameter; and a receiver comprising an RF antenna and a receiver
processor,” as recited by claim 1.

Appeal Br. 11. In particular, Appellant contends the Examiner has not
provided a sufficient rationale for combining teachings of Kim and Mosher.
See Appeal Br. 11–14; Reply Br. 2–4. Appellant argues:

3 To the extent Appellant advances new arguments in the Reply Brief
without showing good cause, Appellant has waived such arguments. See 37
C.F.R. § 41.41(b)(2).
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The Examiner asserts that, “[T]he motivation for the
combination of Mosher with Kim is to have enabled the system
to send commands associated with various self-tests and
diagnostics available on the vehicle.”

The foregoing assertion and the rest of the paragraph in which it
is contained amount to nothing more than a conclusory
statement. Likewise, the alleged support for the assertion
amounts to nothing more than a statement that “more is better.”

Appeal Br. 11–12.
Appellant has not persuaded us of error. The U.S. Supreme Court has
held “[t]he combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Contrary to
Appellant’s arguments, “[i]f the claim extends to what is obvious, it is
invalid under § 103” and “the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” Id. at 418–19.
The Examiner has provided articulated reasoning with a rational
underpinning as to why one skilled in the art would have found it obvious to
combine the teachings of Kim and Mosher. See Final Act. 4; Ans. 2–8.
Appellant does not persuasively explain why such reasoning is incorrect. In
particular, the Examiner finds that Appellant’s invention, Kim, and Mosher
are all in the same field of vehicle management systems. See Final Act. 2–4;
Ans. 3–4. Appellant does not persuasively dispute that finding, as
Appellant’s attorney responses about the field of endeavor (Reply Br. 2) are
unsupported by objective evidence. See In re Geisler, 116 F.3d 1465, 1470
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(Fed. Cir. 1997) (“attorney argument [is] not the kind of factual evidence
that is required to rebut a prima facie case of obviousness”); Meitzner v.
Mindick, 549 F.2d 775, 782 (CCPA 1977) (“Argument of counsel cannot
take the place of evidence lacking in the record.”). Likewise, Appellant’s
attorney arguments about Mosher (Appeal Br. 12–13) are unpersuasive. As
a result, Appellant’s arguments about the comparison of Kim and Mosher
(Appeal Br. 12–13) are also unpersuasive, because Appellant does not
provide objective evidence to support such arguments.
Further, Appellant’s arguments that “a user looking for a parking
space not be interested in collecting information about or controlling the
engines of other cars” and “someone seeking a parking space to wish to
gather information on the operational characteristics of the surrounding
vehicles” (Appeal Br. 13–14) are unpersuasive, because they are not directed
to the Examiner’s proposed combination, which does not include “collecting
information about or controlling the engines of other cars” or “gather[ing]
information on the operational characteristics of the surrounding vehicles”
(Appeal Br. 13–14). As a result, Appellant’s argument about In re
Omeprazole Patent Litigation, 536 F.3d 1361 (Fed. Cir. 2008) (Appeal Br.
13) is inapplicable here.
Appellant also contends:
The Reply Brief includes a statement that, “In the combination of
Mosher with Kim, the SCU (“Secondary Control Unit”) would be
added to the electronic apparatus of Kim, which includes the
control unit of Kim. In the combination of Mosher with Kim, the
SCU would not be communicating with the control units of other
vehicles.”

Adding the SCU of Mosher only to the control unit of Kim [and
no other vehicles] eliminates the entire purpose of the Kim
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system. If the “location information” that is transmitted according
to the present claims were limited to the location of the vehicle in
which the vehicle information module is disposed, it would be of
no use in locating a parking spot.

Reply Br. 3–4.
Appellant’s arguments are not directed to the Examiner’s proposed
combination, which does not “[a]dd[] the SCU of Mosher only to the control
unit of Kim” (Reply Br. 4). Nor does the proposed combination require “the
“‘location information’ that is transmitted according to the present claims were
limited to the location of the vehicle in which the vehicle information module is
disposed” (Reply Br. 4). And Appellant’s attorney argument about
“eliminate[ing] the entire purpose of . . . Kim” (Reply Br. 4) is unpersuasive.
See Geisler, 116 F.3d at 1470; Meitzner, 549 F.2d at 782.
Contrary to Appellant’s arguments (Reply Br. 2–3), In re Nuvasive,
Inc., 842 F.3d 1376 (2016) is inapplicable here. In that case, the Federal
Circuit finds:
Medtronic’s arguments amount to nothing more than conclusory
statements that a PHOSITA would have been motivated to combine
the prior art references to obtain additional information. In its
summary of Medtronic’s arguments, the PTAB never articulated why
the additional information would benefit a PHOSITA when
implanting a posterior lumbar interbody fusion implant, such as the
implants disclosed by the SVS–PR brochure and the Telamon
references.

Id. at 1384.
Unlike the deficient reasoning in Nuvasive, the Examiner explains in
this case:

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the combination of Mosher with Kim would add to Kim an
SCU that would send commands associated with various self-
tests and diagnostics available on the vehicle to the control unit
of Kim (both control units being on the same vehicle) to
determine whether the vehicle is in a desired vehicle speed
state, and if not, to direct the vehicle to a desired speed state to,
for example, implement start/stop override functionality.
([0121]). This benefit is sufficient to support the combination
of Mosher with Kim.

Ans. 6–7 (emphasis added).
The Examiner’s reasoning is not merely “a conclusory statement,” as
Appellant asserts (Appeal Br. 12; see also Reply Br. 3). To the contrary, the
Examiner explains the benefit of the proposed combination (“to determine
whether the vehicle is in a desired vehicle speed state, and if not, to direct
the vehicle to a desired speed state to, for example, implement start/stop
override functionality” (Ans. 6–7)), and Appellant does not persuasively
explain why the Examiner’s reasoning is insufficient. As a result, Nuvasive
is inapplicable here.
The Examiner’s findings and conclusion are reasonable because the
skilled artisan would “be able to fit the teachings of multiple patents together
like pieces of a puzzle,” as the skilled artisan is “a person of ordinary
creativity, not an automaton.” KSR, 550 U.S. at 420–21. Appellant does not
present adequate evidence that the resulting arrangements would have been
“uniquely challenging or difficult for one of ordinary skill in the art” or
“represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 418–19).
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Accordingly, we agree with the Examiner that applying Mosher’s
feature in the Kim system would have predictably used prior art elements
according to their established functions—an obvious improvement. See
KSR, 550 U.S. at 417.
Because Appellant has not persuaded us the Examiner erred, we
sustain the Examiner’s rejection of independent claim 1.
We also sustain the Examiner’s rejection of corresponding dependent
claims 4, 7–19, and 27, as Appellant does not advance separate substantive
arguments about those claims. See 37 C.F.R. § 41.37(c)(1)(iv).

Separately Argued Dependent Claims 5 and 6
Dependent Claim 5
Appellant argues:
Regarding claim 5, the asserted motivation for the
combination of Mosher with Kim is to have “enabled the system
to employ the on-board diagnostic specification that is mandatory
for all cars sold in the United States. The obvious advantage of
this combination is that it would enable the system of Kim to
comply with the government mandated specifications and in so
doing, it would have made it easier to obtain parts for the
manufacture, assembly, and repair of the system of Kim.”
(emphasis added).

The above-excerpted statement ignores the context of Kim,
i.e. a system for locating parking spaces (not cars) and appears
to attach to Kim a regulatory justification (see italics) that is
wholly absent from either reference and has no relevance to the
location of parking spaces. A system for locating parking spaces
has no reason to also collect diagnostic information about other
vehicles. Again, Applicant submits that this rejection is based on
a wholly fabricated justification for combination that does not
exist.

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Appeal Br. 15; see also Reply Br. 5–6.
Similar to the discussions above, Appellant has not persuaded us of
error. Contrary to Appellant’s arguments, “[i]f the claim extends to what is
obvious, it is invalid under § 103” and “the analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR, 550 U.S. at 418–19.
The Examiner has provided articulated reasoning with a rational
underpinning as to why one skilled in the art would have found it obvious to
combine the teachings of Kim and Mosher. See Final Act. 5; Ans. 12–14.
Appellant does not persuasively show why such reasoning is incorrect. In
fact, Appellant concedes the Examiner has provided “a regulatory
justification” (Appeal Br. 15) and thus a stated benefit for the proposed
combination. Further, Appellant’s attorney arguments (Appeal Br. 15; Reply
Br. 5–6) are unsupported, and, therefore, unpersuasive. See Geisler, 116
F.3d at 1470; Meitzner, 549 F.2d at 782. In any event, Appellant’s attorney
argument that “[a] system for locating parking spaces has no reason to also
collect diagnostic information about other vehicles” (Appeal Br. 15 (emphasis
added)) is not directed to the Examiner’s proposed combination, which does
not include such a feature.
Because Appellant has not persuaded us the Examiner erred, and for
similar reasons discussed above with respect to claim 1, we sustain the
Examiner’s rejection of dependent claim 5.
Dependent Claim 6
Claim 6 recites “[t]he vehicle management system of claim 5, wherein
the vehicle information module is in electrical contact with a vehicle battery.”
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Appellant argues:
The Examiner does not explain how the combination of Kim and
Mosher would have provided power to a secondary control unit, not a
vehicle information module. The Office Action provides no teaching in
either Mosher or Kim to suggest that and OBD-II plug would have been
useful for a vehicle management system, or how such a connection
would be made. The Examiner provides no authority for the statement
that “[t]he teachings of Mosher are sufficient without further details
about how such a connection would be made.” Mosher provides no
teaching as to how such a connection would be made and the Examiner
has made no factual findings regarding whether one of ordinary skill in
the art would find that “[t]he teachings of Mosher are sufficient without
further details about how such a connection would be made.”

Appeal Br. 16–17; see also Reply Br. 6.
In response to Appellant’s arguments, the Examiner provides further
explanation showing Kim and Mosher collectively teach claim 6. See Ans.
15. Appellant fails to persuasively respond to such findings, and, therefore,
fails to show error in the Examiner’s findings. See In re Baxter Travenol
Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this
court [or this Board] to examine the claims in greater detail than argued by
an appellant, looking for [patentable] distinctions over the prior art.”).
Further, we agree with the Examiner. Claim 6 ultimately depends from
claim 1, which recites the “vehicle information module.” In connection with
claim 1, the Examiner finds—and Appellant does not dispute—Kim teaches the
“vehicle information module.” Final Act. 2. The Examiner further finds—and
Appellant does not dispute—Mosher teaches “is in electrical contact with a
vehicle battery.” Id. at 5–6. Therefore, the Examiner concludes Kim and
Mosher collectively teach “the vehicle information module is in electrical
contact with a vehicle battery,” as required by claim 6. See id. The Examiner
explains the proposed combination “would have enabled the system to
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employ a vehicle information module that does not need its own internal
power source.” See id.
The Examiner’s findings and conclusion are reasonable because the
skilled artisan would “be able to fit the teachings of multiple patents together
like pieces of a puzzle,” as the skilled artisan is “a person of ordinary
creativity, not an automaton.” KSR, 550 U.S. at 420–21. Appellant does not
present adequate evidence that the resulting arrangements would have been
“uniquely challenging or difficult for one of ordinary skill in the art” or
“represented an unobvious step over the prior art.” Leapfrog Enters., 485
F.3d at 1162. In particular, Appellant has not persuasively explained why
connecting the vehicle information module with an existing vehicle battery is
uniquely challenging or difficult to one skilled in the art. And Appellant’s
arguments (Appeal Br. 16) are not commensurate with the scope of claim 6.
Accordingly, we agree with the Examiner that applying Mosher’s
feature in the Kim system would have predictably used prior art elements
according to their established functions—an obvious improvement. See
KSR, 550 U.S. at 417.
Because Appellant has not persuaded us the Examiner erred, and for
similar reasons discussed above with respect to claim 1, we sustain the
Examiner’s rejection of dependent claim 6.

Claims 20, 22–26, 28
We have reviewed the Examiner’s rejection in light of Appellant’s
contentions and the evidence of record. We concur with Appellant’s
contentions that the Examiner erred in finding the cited portions of Kim
teach or suggest “transmitting the location of the vehicle information module
using the RF transmission module only when the vehicle information module is
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within a car lot,” as recited in independent claim 20 (emphasis added). See
Appeal Br. 14–15; Reply Br. 4–5.
The Examiner acknowledges “Kim does not explicitly disclose
transmitting the location information only when the vehicle information
module is within a car lot.” Final Act. 9. After citing many paragraphs from
Kim, the Examiner concludes Kim suggests the disputed limitation. See
Final Act. 9–10. We have reviewed the cited Kim paragraphs, and they do
not teach or suggest “transmitting the location of the vehicle information
module using the RF transmission module only when the vehicle information
module is within a car lot,” as required by claim 20 (emphasis added). In
fact, the disputed limitation contradicts Kim’s objective of “avoid[ing] a
situation in which a driver approaches a parking lot in spite of there being no
parking space, thus consuming time and cost, and to allow the driver to find
and immediately approach a parking lot with an available space.” Kim ¶ 18.
To accomplish that objective, it is desirable for Kim to “transmit[] the
location of the vehicle information module” before—not after—the vehicle
enters the car lot. As a result, the Examiner has not persuasively explained why
Kim teaches or suggests “transmitting the location of the vehicle information
module using the RF transmission module only when the vehicle information
module is within a car lot,” as required by claim 20 (emphasis added).
Because the Examiner fails to provide sufficient evidence or
explanation to support the rejection, we are constrained by the record to
reverse the Examiner’s rejection of claim 20.
We also reverse the Examiner’s rejection of corresponding dependent
claims 22–25 and 28. Although the Examiner cites additional references for
rejecting some dependent claims, the Examiner has not shown the additional
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references overcome the deficiency discussed above in the rejection of claim
20.
For similar reasons, we reverse the Examiner’s rejection of dependent
claim 26 (which depends from claim 1), because claim 26 includes a similar
limitation and the Examiner cites similar findings and conclusions
(discussed above with respect to claim 20). See Final Act. 12–13.

CONCLUSION
In summary:

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 4–18, 20,
22, 23, 25,
26
103

Kim, Mosher 1, 4–18 20, 22, 23,
25, 26
19, 24 103 Kim, Mosher, Kuo 19 24
27 103 Kim, Mosher,
Ousborne
27
28 103 Kim, Mosher,
Kirkhart
28
Overall
Outcome
1, 4–19, 27 20, 22–26,
28

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED IN PART